No. 1307 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County at No. 1281 of 1980.
Sara M. Webster, Assistant Public Defender, Doylestown, for appellant.
Dianne McMonagle Devlin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Spaeth, Cavanaugh and Montemuro, JJ.
[ 311 Pa. Super. Page 534]
Appellant, age 19, pleaded guilty on August 18, 1980, to robbery,*fn1 aggravated assault,*fn2 recklessly endangering another person,*fn3 conspiracy,*fn4 and violating the Uniform Firearms Act.*fn5 He was thereafter sentenced to eight months to six years imprisonment at the State Correctional Institution at Camp Hill. After a hearing on appellant's petition for reconsideration of sentence, at which defense counsel stated that Camp Hill would not accept appellant with a minimum sentence, the sentence was modified to a term of imprisonment not to exceed six years. In modifying appellant's sentence, the court specifically indicated that it was doing so in order for appellant to be placed at Camp Hill. See 61 P.S. § 485. This appeal from the court's modified sentence followed.
The sole issue in this appeal is whether the modification of appellant's sentence, eliminating the eight months minimum, represents an increase in sentence, thereby violating the double jeopardy clause. Appellant argues, inter alia, that the sentence is unlawful*fn6 because it fails to set forth a minimum term of imprisonment.*fn7
[ 311 Pa. Super. Page 535]
This case is factually indistinguishable from Commonwealth v. Aeschbacher, 276 Pa. Super. 554, 419 A.2d 596 (1980), where we found illegal a sentence imposing only a maximum term of imprisonment. In so doing, we held that sentencing is governed exclusively by the then applicable Sentencing Code which stated in pertinent part:
MINIMUM SENTENCE -- The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed. 18 Pa.C.S.A. § 1356(b).
By interpreting the sentencing statute to require the fixing of a minimum, as well as a maximum, sentence, we specifically disavowed earlier cases which presumed a one day minimum on a flat sentence, i.e., a sentence with a maximum term only. As we stated: "This interpretation is more in keeping with the policy of having the full sentencing responsibility lodge with the trial court and it eliminates any 'construction' of sentences by appellate courts." Id., 276 Pa. Super. at 557, 419 A.2d at 598. Accordingly, we vacated the judgment of sentence and remanded the case for resentencing. A similar result, based on Aeschbacher, was recently reached by this court in Commonwealth v. Shoemaker, 303 Pa. Super. 242, 449 A.2d 669 (1982) (allocatur granted).*fn8
[ 311 Pa. Super. Page 536]
Those cases are controlling and dispose of the ...